Is Jack Kirby's Family Greedy? Who Cares!?

Worrying about how much money Kirby's heirs "deserve" from his creations is an annoying digression from the real issue.

The second most annoying people in the world are the ones who cannot wait to explain why those who exploit and steal from you are perfectly just, and why you are an ungrateful wretch for even thinking that the situation sucks.

The most annoying people in the world? The ones who acknowledge that the exploitation and theft are indeed bad, but insist that anyone who isn't the specific victim of said exploitation, yet attempts to rectify the matter, is a charlatan who at best is hoping to get rich or famous off of someone else's work.

I bring this up because Jack Kirby is, once again, back in the news as we learn this week, via The Hollywood Reporter, that SAG-AFTRA, the DGA and the WGA, the big three of Hollywood guilds, have filed an amicus brief in support of the Kirby Estate's petition to have their case heard by the US Supreme Court. And this means that once again, the parade of people complaining about how greedy or lazy Kirby's relatives are will resume.

It is of course widely known that more than any other artist, Kirby is responsible for the original look and feel of Marvel comics, and his characters, among them Silver Surfer, The Fantastic Four, and most of The Avengers, are synonymous with Marvel itself. However, thanks to the vagueness of his original contract with the publisher, his only profit from the work that now generates billions was the relative pittance he was paid for each submission. During the 70s Kirby entertained the possibility of suing for some ownership of his characters, but lacked the resources to mount a serious challenge. Instead, he decided to fight for the return of physical copies of his art that Marvel never used. He died without ever revisiting the matter.

Since Kirby's death in 1994, Jack Kirby's surviving family have been waging a Quixotic battle to establish ownership of comic book characters Kirby created or co-created for Marvel during the 1960s. (Which, by the by, include most of those currently earning Disney and Marvel billions in movie theaters and home video.) In 2009, the estate attempted to terminate Marvel's copyright under provisions of the Copyright Act of 1976. Unfortunately for them, lower courts have consistently ruled that Kirby, a so-called work for hire employee, sold to Marvel what amounts to "commissioned" art, and thus never had any claim of ownership.

If it sounds cut and dry, that's forgivable. But these decisions may in fact be enormously unfair and legally unsupportable, problems obscured by the complexity of US copyright law, and by previous court rulings with unintended, but far-reaching consequences.

Jilted By The Law Designed To Protect You

The Copyright Act of 1976 is more famous for being the first time congress extended the term of copyright considerably (but not the last!). However, because most US copyrights are held by a small number of entities, and because many of the contracts that gave them those copyrights were not entirely fair, the bill also contains a compromise designed to provide an avenue for creators of a work to be able to reclaim said works. Creators - or their heirs, beneficiaries and representatives - who meet specific criteria have the option of issuing a notice of "termination" of copyright ownership, which would revert the rights to said creator.